LOCK-DOWN, COVID-19 AND LAW

A law cannot cure a disease but certainly it can be helpful in arresting spread of a disease. Amid the outbreak of an epidemic Covid-19 world is facing a public health emergency of an unprecedented order. One after another state is declaring lockdown, people are living in the shadow of fear, fear of an untimely disgraceful death. The countries which are most affected till date after China are Italy, Iran, Spain, USA  and many more, including India. This extraordinary situation is calling for extraordinary measures and in India drastic measures are being taken in last couple of weeks. Some by central government while many by respective state governments and local bodies. These measures are also having direct bearing upon individual’s basic freedom to movement and right to livelihood besides right to informed and consensual treatment. 

Law can contribute to the prevention of infectious diseases by improving access to vaccinations and contraceptives, and by facilitating screening, counselling and education of those at risk of infection. Law also has a reactive role: supporting access to treatment, and authorizing public health authorities to limit contact with infectious individuals and to exercise emergency powers in response to disease outbreaks[1]. ·

Where public health laws authorize interferences with freedom of movement, the right to control one’s health and body, privacy, and property rights, they should balance these private rights with the public health interest in an ethical and transparent way. Public health powers should be based on the principles of public health necessity, reasonable and effective means, proportionality, distributive justice, and transparency[2].

That is, Coercive powers should be exercised on the basis of a demonstrable threat to public health only. Mandatory physical examination, treatment or isolation should require a reasonable suspicion that the person is contagious or could pose harm to others.

The specific measures adopted by governments must be appropriate to prevent or reduce the threat. Governments should monitor the effectiveness of public health interventions and ensure that they are based on sound science.

Governments must strive to ensure that there is a reasonable fit between the coercive measures imposed on individuals, and the public health benefit that they seek to achieve. Governments should adopt the least burdensome measure from among the measures that are available and reasonably appropriate to mitigate the risks in question. Restrictions that are “gratuitously onerous or unfair” may “overstep ethical boundaries”[3].

The risks, benefits and burdens of public health interventions should be shared fairly. For example, vulnerable populations should not be targeted with restrictive measures, nor excluded or given lower priority in the allocation of treatment, vaccines, or other benefits.

The public should have an opportunity to participate in the formulation of public health policies, and governments should give reasons for policies and decisions that restrict individual freedoms. Openness and accountability are essential to generating public trust, and are likely to improve public health decision-making. Without public trust and voluntary cooperation, governments will find it harder to achieve their goals and to act in the public interest[4].

Let’s examine the legislative set up available and used by various state governments and Union Government in India. The Government of India has declared the outbreak of Covid -19 as a Natural Calamity under Disaster Management Act 2005, State Governments are using the provisions of 122 year old Epidemic Diseases Act, 1897 having in all 4 sections,  to take drastic measures like complete lockdown. Essential Commodities Act to maintain steady supply of commodities like hand sanitizers and face mask etc. and recently provision of IPC, “negligent act likely to spread infection or disease dangerous to life” (Sec. 269 IPC.), a “malignant act likely to spread infection or disease dangerous to life” (Sec. 270 IPC.), “making atmosphere noxious to health” (Sec. 278 IPC.), Section 268, “a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity.

Prima facie the legal provisions in India are neither in consonance with the standard procedure prescribed for Infection Prevention and Control by the WHO[5], nor sufficient to tackle the unprecedented situation created due to pandemic Covid – 19.

It is necessary for the Government to substantial each of its action taken to handle public health emergency must be supported and backed by a just legislation, which shall take into account all socio-economic effect of such actions, in the absence of which, all such actions not only are bad in the eyes of law but also amount to taking away the constitutional guarantees under Article 21, 19, 14 and 26 of the Constitution. Following are some of the specific issues, which needs to be taken care of by an appropriate legislation.

Screening individuals to determine if they have been infected with or exposed to an infectious disease is a core public health strategy. Health laws can improve the success of voluntary screening programmes by including counselling requirements, ensuring the confidentiality of test results, and protecting individuals diagnosed with particular diseases from discrimination.

Governments should carefully consider the appropriate role of criminal law to prevent the transmission of infectious and communicable diseases.

Public health laws should authorize compulsory treatment only in circumstances where an individual is unable or unwilling to consent to treatment, and where their behaviour creates a significant risk of transmission of a serious disease. Compulsory treatment orders should restrict individual liberty only to the extent necessary to most effectively reduce risks to public health. Minimizing the transmission of infectious diseases is a core function of public health law[6].

Clearly defined legal powers are needed to respond to outbreaks of contagious and serious diseases at national level. The appropriate exercise of legal powers will vary according to the seriousness of the disease, the means of transmission, and how easily the disease is transmitted. Public health laws may authorize the isolation of individuals and groups who may have been exposed to an infectious disease, as well as the closure of businesses and premises and the confiscation of property. The exercise of these powers must be based on public health considerations, without discrimination on grounds of race, gender, tribal background, or other inappropriate criteria. Public health laws should provide for the fair compensation of those who have suffered economic loss due to a public health order affecting their property or facilities. Global strategies for controlling infectious diseases advise against placing heavy reliance on criminal laws and penalties.

Isolating persons who have or may have been exposed to a serious contagious disease, in order to prevent transmission, is a long-established public health strategy that may be applied to both individuals and groups. Where an outbreak of a serious, contagious disease occurs, it will often be impractical or impossible to accurately identify cases and carriers of disease. For this reason, public health laws should authorize officials to evacuate or to order the closure of premises (e.g. markets, schools and movie theatres) and to prevent access to public spaces where people would otherwise gather. Since the closure of premises can affect businesses and livelihoods, it is important for the operation of public health orders to be reviewed regularly and to be based on public health considerations, without discrimination on grounds of race, gender, tribal background or other inappropriate criteria.

Public health orders for the evacuation or closure of premises may be coupled with orders to disinfect and decontaminate premises, or to remove noxious articles (including objects, birds and animals) that are contaminated with an infectious agent. Where the confiscation or destruction of private property causes more than trivial economic loss, public health laws should require reasonable compensation to be paid to the owner. This principle can have an important benefit for public health laws that provide for just compensation are more likely to secure the trust and voluntary cooperation of those who are poor and economically vulnerable, and who for that reason are most likely to be adversely affected by a public health order.

Public health laws should authorize public health officials to make orders for the isolation of infected individuals, and the quarantine of those who have been exposed to a serious contagious disease. As with treatment orders, however, these restrictions on autonomy should only be used as a last resort and should be minimally restrictive. For example, an infectious individual who does not require medical attention may be effectively quarantined within his or her home, rather than being confined in a hospital or other facility used as a detention center. Laws authorizing mandatory confinement must also ensure that basic needs are met, including adequate shelter, food, water and sanitation. They should also provide for appropriate treatment and health care, and respect the cultural or religious expectations of quarantined or isolated individuals to the greatest possible extent. National laws should also include procedural safeguards, by giving individuals who are the subject of a quarantine or isolation order the right to seek review by a court within a reasonable time.

Hope governments will take care of all these requirements of law and justice in this testing times and will come out with at least an ordinance taking care of issues discussed above.

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Author: Dr. Ravishankar K.Mor, Associate Professor at R.T.M.N.University’s Dr. Babasaheb Ambedkar College of Law, Nagpur.

Note: Above article is based on the excerpts from the WHO’s  International Health Regulations 2005. 2nd ed. Geneva: World Health Organization; 2008: Article 6, Annex 2 and Summery thereof.

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[1] Chapter 10: Controlling the spread of infectious diseases, Advancing the right to health: the vital role of law Page 152 Available at https://www.who.int/healthsystems/topics/health-law/chapter10.pdf last visited on 22.03.2020

[2] Ibid.

[3] Gostin L, Berkman B. Pandemic influenza: ethics, law, and the public’s health. Administrative Law Review. 2007;59:121–75, 148.,

[4] Chapter 11, International Health Regulations 2005. 2nd ed. Geneva: World Health Organization; 2008: Article 6, Annex 2

[5] International Health Regulations 2005. 2nd ed. Geneva: World Health Organization; 2008: Article 6, Annex 2

[6] Ibid.